EVERETT — Prosecutors won’t be able to use breath tests as evidence in nearly 40 pending drunken driving cases in Snohomish County, a panel of local judges ruled Monday.
The three district court judges threw out breath-test machine results that used materials supposedly verified by a former Washington State Patrol toxicology lab manager whose work has come under question.
“The court has let the state know if the state wants to deprive a person of their liberty it has to rely on evidence that is both scientifically sound and not tainted with misconduct,” said Theodore Vosk, a Bellevue attorney who argued the case for several drunken-driving defendants.
The issue arose after state toxicology manager Ann Marie Gordon allegedly made false claims about verifying solutions used for breath tests. Gordon resigned in July after being accused of falsely signing that she had verified quality-assurance solutions used in the tests.
The machines use an external simulator solution as a control to verify the machines’ results. The toxicology lab prepares and certifies the solutions used in breath machines used by all police departments. The judges from the south division of Snohomish County District Court in Lynnwood ruled that test results relying on solutions with Gordon’s verification must be excluded from trial.
The decision won’t necessarily cripple prosecutors’ cases against all the defendants, said Randy Yates, lead Snohomish County prosecutor for the district courts.
“We’ll have to evaluate our cases and decide what effect the suppressed (breath tests) have on those cases,” Yates said.
Other evidence such as field sobriety tests and observations of police officers can be used to prosecute drunken drivers, Yates said. The ruling affects only drunken driving cases brought before October, Yates said.
The prosecutor also will consider whether to appeal the decision. It was written by a panel of three judges from the court in Lynnwood: Jeffrey Goodwin, Carol McRae and Timothy Ryan.
The panel heard some new testimony and argument, but relied heavily on evidence presented in Skagit County in a similar hearing. Skagit County judges criticized practices of the toxicology lab, but said breath tests could be used in drunken-driving cases there.
Another hearing attacking the breath tests is set in King County in January, part of a series of defense attorney arguments.
In Snohomish County, the judges wrote that irregularities at the toxicology lab violate “protocol the (state) toxicologist has found necessary to ensure reliable breath test results.”
The 40 Snohomish County cases are directly affected by Monday’s ruling, but the actual number could be much higher, attorneys from both sides said.
The Snohomish County panel had information that the Skagit County judges didn’t have, Vosk said. He’s asked the Skagit County judges to reconsider.
The whole point in attacking the breath machine results is to make sure the government does things the right way, Vosk said.
“All we want is for everything to be fair and honest,” Vosk said.
Reporter Jim Haley: 425-339-3447 or jhaley@heraldnet.com.
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